Wendon and Padbury (No.2) - [2018] FCCA 3116

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENDON & PADBURY (No.2)

[2018] FCCA 3116

Catchwords:
FAMILY LAW – Costs.

Legislation:

Family Law Act 1975, pt.VIIIAB, ss.90RD, 117(1)

Federal Circuit Court Rules 2001, div. 21

Cases cited:

Trahn & Long(No.2) [2008] FamCAFC 194

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Stanford v Stanford [2012] HCA 52

Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848
Williams v Williams [2007] FamCA 313
Pierce v Pierce (1999) FLC 92-844
Omacini v Omacini (2005) FLC 93-218
Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Davida & Davida (Costs) [2010] FMCAfam 102 Appeal

Applicant:

MS WENDON

Respondent:

MR PADBURY

File Number:

PAC 3789 of 2016

Judgment of:

Judge Harman

Hearing date:

11 September 2018

Date of Last Submission:

11 September 2018

Delivered at:

Parramatta

Delivered on:

11 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr Duncombe of Dignan and Hanrahan Solicitors

Solicitors for the Respondent:

Ms McAnderson as agent for Camden Solicitors and Conveyancers

ORDERS

Dismiss the Application for stay contained within the Application in a Case filed 21 August 2018 and remove that Application from the list of cases awaiting hearing.
The Respondent, Mr Padbury, shall pay to the Applicant, Ms Wendon, as a contribution towards her costs incurred in the substantive proceedings concluded by the Judgment delivered 9 July 2018, a sum of $32435.60, together with the sum of $2,987 being costs with respect to today’s appearance and resistance of the Application in a Case filed 21 August, 2018, (those costs being in addition to costs as previously ordered by this Court 5 July 2017 in the sum of $17415, such that the total costs payable by the Respondent to the Applicant is $52837.60 together with interest accrued upon the earlier sum and any costs as might ultimately be incurred with respect to recovery).
The above costs of $32435.60 and $2,987 shall be paid by the Respondent to the Applicant by close of business 24 September 2018 (being the day prior to the listing of these proceedings before the Full Court Appeal Registrar) and in the event that payment is not made by that time then;
(a)Interest shall accrue upon that sum or any portion thereof which remains outstanding from time to time and as determined in accordance with the Federal Circuit Court Rules 2001;
(b)The Applicant shall be entitled to commence proceedings in a Court of competent jurisdiction for recovery of that sum together with interest and any cost of enforcement including by Application for the issue of a writ for possession of real estate.

IT IS NOTED that publication of this judgment under the pseudonym Wendon & Padbury (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3789 of 2016

MS WENDON

Applicant

And

MR PADBURY

Respondent

REASONS FOR JUDGMENT

This determination relates to discrete issues arising from the conclusion of property adjustment proceedings. Those proceedings were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wendon and Padbury (No.2)

Details

AGLC: Wendon and Padbury (No.2) [2018] FCCA 3116
Case: [2018] FCCA 3116
Decision Date: 11 September 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Harman considered an application by Ms Wendon (the Applicant) against Mr Padbury (the Respondent). The dispute concerned an application for a stay of proceedings, which followed substantive proceedings that had concluded with a judgment delivered on 9 July 2018.

The court was required to determine whether to grant the Applicant's request for a stay of proceedings. Additionally, the court was tasked with assessing and ordering costs in relation to both the concluded substantive proceedings and the recent application for a stay.

Judge Harman dismissed the application for a stay. In relation to costs, the court ordered the Respondent to pay the Applicant a contribution towards her costs in the substantive proceedings amounting to $32,435.60. Further, the Respondent was ordered to pay $2,987 for the costs incurred in resisting the application for a stay. These sums, when added to previously ordered costs, brought the total costs payable by the Respondent to $52,837.60, plus accrued interest and any future recovery costs. The court stipulated that these costs were to be paid by 24 September 2018, with provisions for interest and enforcement proceedings should payment not be made by that date.

Orders

Orders of the court

Dismiss the Application for stay contained within the Application in a Case filed 21 August 2018 and remove that Application from the list of cases awaiting hearing.

The Respondent, Mr Padbury, shall pay to the Applicant, Ms Wendon, as a contribution towards her costs incurred in the substantive proceedings concluded by the Judgment delivered 9 July 2018, a sum of $32435.60, together with the sum of $2,987 being costs with respect to today’s appearance and resistance of the Application in a Case filed 21 August, 2018, (those costs being in addition to costs as previously ordered by this Court 5 July 2017 in the sum of $17415, such that the total costs payable by the Respondent to the Applicant is $52837.60 together with interest accrued upon the earlier sum and any costs as might ultimately be incurred with respect to recovery).

The above costs of $32435.60 and $2,987 shall be paid by the Respondent to the Applicant by close of business 24 September 2018 (being the day prior to the listing of these proceedings before the Full Court Appeal Registrar) and in the event that payment is not made by that time then;

(a) Interest shall accrue upon that sum or any portion thereof which remains outstanding from time to time and as determined in accordance with the Federal Circuit Court Rules 2001;

(b) The Applicant shall be entitled to commence proceedings in a Court of competent jurisdiction for recovery of that sum together with interest and any cost of enforcement including by Application for the issue of a writ for possession of real estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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